This action cannot be maintained for a breach of the covenant against incumbrances, because the way alleged to be an incumbrance did not exist on the 26th of August 1858, when the deed was made. The selectmen had made a view, and staked out the road, but it does not appear that they took any further step till August 31st. They filed a location on that day; but the way did not actually exist till the location was accepted by the town, at a still later date.
Nor can the action be maintained for money had and received. The conveyance was made at so early a stage of the proceedings that the grantees were the only proper claimants for the damage occasioned to the land conveyed. One of the grantees being also one of the selectmen, there was notice of the transfer, to the selectmen, and notice of the proceedings of the selectmen to the plaintiffs; and if the plaintiffs desired to obtain damages, they ought then to have made their claim ; and if no damages were allowed to them, they would have been entitled to a jury. But the defendant still had a claim, because the road was laid upon his other land ; and a sum was allowed to him in gross. If he had been dissatisfied with the sum, and had called out a jury, he could not have recovered before them for *600any damage done to the plaintiffs’ land. In this condition of things, it cannot be said that he has received any money for damages in trust for the plaintiffs, or to their use.
Judgment for the defendant.